Can China Maintain “Sovereignty” Over the Internet?

Columbia Professor Tim Wu stands at the intersection of some of the most interesting legal and technological issues of the day. (He is also known to hold strong views on dumplings.) Wu was writing about the law and the Internet long before anyone else knew to pay attention. His 2006 book with Jack Goldsmith—Who Controls the Internet? (Oxford University Press)—predicted correctly that existing laws would be used to control the growth and shape of the Internet, rather than the Internet ushering in a new borderless age. (His forthcoming book from Knopf looks at technology monopolies: “The Master Switch: The Rise and Fall of Information Empires.”)

This week, China issued its first manifesto on the subject of the Internet—a full-throated declaration of independence from loosey-goosey American notions of how the Internet would prevail over the laws that differentiate nations. This white paper is China’s most detailed response to its unhappy encounter with Google last spring, and it outlines the sanctity—and limits—of its conception of free speech: “While exercising such freedom and rights, citizens are not allowed to infringe upon state, social, and collective interests or the legitimate freedom and rights and other citizens.” I asked Wu what he makes of it.

In its first white paper about the Internet, the Chinese government has put special emphasis on “Internet sovereignty,” which the Chinese press declares a new concept by which “foreign I.T. companies operating in the country have to abide by Chinese law.” But you’ve been writing about “cyberspace sovereignty” since the mid-nineties. So, what does this sovereignty-with-Chinese-characteristics really mean and does it differ at all from what other countries are doing?

The interesting thing is that the term “Internet sovereignty” originally had a meaning opposite to what the Chinese define it as. In the mid-nineties, some American academics proposed that, since it has its own rules, and its own citizens (of a sort), the Internet ought be considered “sovereign” in a way. If something is sovereign it means it is subject to its own rules, and generally not subject to the rule of other nations—Iceland is sovereign, for example. The Chinese obviously don’t agree with that theory—they don’t think the Internet is like Iceland, a self-governing land, so to speak. In this, the fact is that the Chinese are not alone. Most countries have by now assumed that Internet firms or content-providers must follow their laws, at least when it can be said that it has effects within their borders, or a physical presence of some kind, like a server. So the Chinese theory of “Internet sovereignty,” if poorly named, is a statement of private international law as typically practiced. (This is the subject of a book Jack Goldsmith and I wrote in 2006, “Who Controls the Internet?”). The big difference is the substance of the Chinese rules—which go way beyond the rules of any major country.

The other big difference is that other countries, if they don’t consider the Internet sovereign, have a certain respect for the network as a platform for free speech (sometimes linked to a non-blocking principle, or “net neutrality.”) Again this varies from place to place, but China is unique in its lack of respect for the idea of an open Internet.

In a 2006 paper, you asked, “How much control is legitimate domestic regulation, and how much is a barrier to trade and a breach of promises made to other members of the WTO?” Neelie Kroes, vice-president of the European Commission, said recently that China’s firewall is a trade barrier and needs to be addressed by the World Trade Organization. But has anything changed since the last time the W.T.O. sided with China on these issues, and, if not, is the W.T.O. really serving the broadest interests here?

The W.T.O. has never directly considered the question of whether China’s Internet practices are a trade barrier. As I said in that 2006 paper, I think blocking creates trade questions: when, say, an American firm like Google wants to provide Chinese citizens with a service (search), and Chinese effectively discriminates against Google in favor of its local champion “Baidu,” you have a classic example of a trade barrier. (Note that Baidu’s share of the Chinese market has gone from 3% to 46% over the last eight years, while Google has remained stagnant).

Things have gotten serious enough that the United States Trade Representative has gotten involved at least once, in 2009, when Chinese proposed that every computer sold in China come pre-installed with Chinese filtering software. The effect, beyond censorship, was to favor domestic manufacturers. For the W.T.O. to get involved, some nation will need to bring a proceeding against China. Right now most of these matters are handled behind the scenes, state-to-state, like the issue of the filtering software. Yet, one of these days, if the blocking continues to hurt exporters, you may see a case.